Surveillance in the workplace is nothing new. Surveillance cameras date back to the 1950s, and email surveillance has been going on at least since the early 2000s. With the advancement and implementation of technology into almost every aspect of our everyday lives, including our workday, surveillance in the workplace is now at an all-time high. So why do employers frequently conduct surveillance in the workplace? There are three main reasons: to manage and increase productivity, increase workplace safety, and protect against the theft or misuse of confidential information.
Probably the most important reason for workplace surveillance is employee productivity. Employers are monitoring remote workers’ performance by taking pictures of employees, tracking email, web-browsing patterns and keystrokes, and taking screenshots to determine whether the workers are staying on task. To make it easier for employees, Amazon recently obtained a patent on a wristband that pinpoints the location of warehouse employees and tracks the employees’ hands in real time. The wristband, which is supposed to streamline the fulfillment of orders, uses ultrasonic tracking to identify the precise location of warehouse employees’ hands as they retrieve items for product orders. It then vibrates against the employee’s skin to point their hand in the right direction. Employees from Three Square Market, a Wisconsin tech company, have had microchips implanted in their hands to allow employees to enter the workplace, log onto their computers, and get snacks from the vending machine with the wave of a hand. A Dallas restaurant chain’s use of workplace surveillance led to a waiter’s promotion to a manager position in a newly opened location after the company discovered the waiter’s statistics from its surveillance data. Bank of America utilized workplace surveillance in some of its call centers and discovered that employees in tightknit communication groups were more productive and less likely to quit. Therefore, to increase social communication, the company implemented a 15-minute coffee break into the employees’ daily routine. This led to a more than 10 percent increase in call-handling productivity and a nearly 70 percent decrease in employee turnover.
Employers are using surveillance to make sure that warehouse workers are safe and employees who do a lot of traveling in company vehicles are driving safely. For example, UPS is utilizing sensors on its trucks to monitor vehicle performance, improve delivery methods, and ensure safe vehicle operation. Then there are the more recent trending topics including the #MeToo movement and violence in the workplace that have employers monitoring employees’ communications and using video surveillance of certain work areas to try to stop harassing conduct, even without the need for an employee to report it. With harassment claims making up an ever-larger percentage of EEOC charges being filed these days, employers are hoping to detect and address employee misconduct as early as possible.
Employee Misconduct Related to Confidential Information
Although important, non-compete and non-disclosure agreements sometimes are not enough. Employers are also monitoring employees’ activity involving sensitive and confidential information and company trade secrets to guard against theft and data breaches. With the data breach epidemic in full force, monitoring employees’ activity involving sensitive and confidential employee and customer information and company trade secrets has become required and nearly unavoidable. So much so that the Hospitality industry and organizations such as the American Hotel and Lodging Association and the National Restaurant Association have made data security a main area of concern and focus.
Federal and State Laws Impacting Workplace Surveillance
Because an employer’s decision to implement workplace surveillance may implicate state and federal law, it is wise to consult counsel before proceeding. For most surveillance, the safest practice is to inform employees how they may be monitored and obtain consent via an employee handbook. For instance, surveillance with consent is one of several exceptions applicable to employers under the Federal Wiretap Act, which generally prohibits interception of wire, oral or electronic communications. Another federal law that may limit surveillance is the Stored Communications Act. While that act does not prohibit an employer from accessing communications stored on its own systems, it may apply to prohibit employer access to an employee’s personal secure website, private social media accounts, or third-party internet or email accounts like Yahoo, Gmail and Hotmail.
Employers also should be aware that Arkansas law prohibits intercepting or recording wire, wireless or other oral communication unless one party to the communication has given prior consent. A separate Arkansas statute prohibits the use of cameras or image recording devices to secretly observe, photograph, film or videotape a person who is in a private area outside public view, who has a reasonable expectation of privacy in the area, and who has not consented to the observation. That law specifically does not apply to security monitoring operated by the owner or administrator of a place of business. Finally, employers should be aware that Arkansas law generally prohibits them from requesting or requiring that current or prospective employees disclose user names and passwords to social media accounts.
Implementing a Workplace Surveillance Policy
So, what steps should an employer take to implement a workplace surveillance policy? The first step to determine the overall purposes and goals for the program. This includes ensuring there is a legitimate business purpose for the planned surveillance, and making sure you can articulate reasons why surveillance is necessary. Just because you can monitor employee activity, does not necessarily mean that you should since there are drawbacks to doing it—such as employee morale.
Second, determine the methods and techniques for monitoring and surveillance appropriate for the business purpose. Thinking about managing employee productivity, you might consider monitoring employee keystrokes. You should determine the scope of monitoring and surveillance necessary to accomplish the business purpose — do you need complete video playback of all screen activity or will something less intrusive suffice? Start with less, and increase the type and amount of surveillance if warranted.
The final step is the implementation and distribution of clear employment policies about your company’s surveillance program. Your written policy should clearly: 1) identify which employees are monitored; 2) notify employees that they should have no expectation of privacy and their electronic communications may be monitored regardless of whether the communications are internal, external, work-related, personal, or private; 3) identify a comprehensive list of communications that will or may be monitored, such as: email, telephone, voicemail, internet activity, including social media postings, and text messages; 4) explain in detail how and when the monitoring and surveillance is done; 5) prohibit disclosure of trade secrets, employer confidential information, including financial information, and personal or other sensitive information; 6) reserve the right to access and monitor all systems and content, including personal or other content that employees want to remain private, at any time without prior notice or permission; and 7) require written acknowledgment of the policy and consent to monitoring from each employee.
Implementing workplace surveillance is not an easy task. It is critical that employers approach the topic carefully and be transparent with employees when doing so. Making sure the surveillance is narrowly tailored for legitimate business purposes and not in violation of any laws and regulations, and having policies and procedures in place that discuss employees’ expectation of privacy in the workplace is absolutely necessary.
— Daveante Jones, Troy Price and Regina Young